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Leaving the EU: the legislative future

15 May 17

Despite the UK Government's white paper, much uncertainty remains over post-Brexit legislative processes in relation to EU law. This article suggests some initial themes for advisers to consider

by Lynda Towers

One of the few certainties around the whole Brexit exercise is that there is going to be a lot of work for lawyers. Work will span advising Governments or legislatures, drafting legislation, advising corporate or sectoral clients and advising private sector clients on employment and financial issues. Brexit is a legal change that is going to affect all our practices in some way. The trick is working out how it will affect us and our clients now. The main concern for all of us is that the law works on Brexit day plus one.

The UK Government’s position is that EU law will no longer be supreme in the UK. UK legislatures will have complete control over making UK law. UK courts will be the final interpreters of UK law. The UK will have brought back control from the EU. However noble an aspiration, even before negotiations have started in earnest, it seems inevitable that the effects of EU law will waft across from Brussels and influence UK law for some time to come. Forty years of case law cannot be wiped out entirely and we can only anticipate some residual impacts arising out of the trade negotiations. We may not have heard the last of state aid, European data protection and procurement requirements, even if they are separate from UK law.

EU precedence

For those lawyers for whom the theory of EU law is a distant memory, the Supreme Court in the article 50 case (Miller v Secretary of State for Exiting the European Union [2017] UKSC 5) helpfully set out its understanding of the current status of EU law in the majority decision:

“Many statutes give effect to treaties by prescribing the content of domestic law in the areas covered by them. The [European Communities Act 1972] does this, but it does considerably more as well. It authorises a dynamic process by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes. This may sound rather dry or technical to many people, but in constitutional terms the effect of the 1972 Act was unprecedented.”

EU law becomes UK law in a number of different ways:

Treaty law, and regulations, are directly applicable. Once they issue from the EU, nothing further needs to be done for them to be law in the UK.

Decisions have direct effect, but only on the persons or states to whom they are addressed.

Directives need to be implemented by legislation in the UK, either by an Act or by secondary legislation.

Case law tidies up the legal uncertainties.

Starting points

We now have the white paper on the Great Repeal Bill. The bill, which will feature in the next Queen’s speech, is intended to do three things. It will repeal the European Communities Act 1972 and related legislation such as that dealing with EU elections. It will convert EU law into UK law at the moment of Brexit. It will create powers to allow secondary legislation to amend primary legislation, affectionately, or otherwise, known as Henry VIII powers.

This is not however as simple as it sounds. Much will be written over the next few years, but I suggest three issues to start thinking about.

Regulatory legislative certainty across the EU over the decades has been both a blessing and a curse. Brexiteers will cite the absurdity of putting labels on smoked salmon to say the product contains “fish”. There is, however, a comfort in knowing that food products are regulated to the same high standard across the EU. As time goes on, there will inevitably be divergence in regulatory equivalence, as the EU moves forwards without the UK. There is the possibility of trading on UK, EU, WTO and other standards for the same product. There is potential for a lot of paperwork and uncertainty.

Henry VIII clauses are probably an inevitability, bearing in mind the thousands of pieces of legislation which will require to be amended either on Brexit or shortly thereafter to make the law work. This is undoubtedly going to result in less scrutiny of changes by the legislatures.

This will also apply to Holyrood, Cardiff and Stormont, which hold devolved powers in relation to EU legislation. It will be essential to have robust processes to ensure that Governments as the executive do not exceed their powers in dealing with the legislatures.

Finally, the question of “repatriation” of powers is likely to be a fiercely contested issue. The UK Government has assured the devolved administrations that it will not take back existing powers already devolved. The Scottish Government consider that everything devolved-“related” should come back to the Scottish Parliament. However, “related to” does not mean a matter is necessarily devolved already. Even the definition of what counts as “agriculture” is far from agreed, although most people would think it was devolved. Are farm subsidies, labelling of farm products or environmental subsidies part of “agriculture” or something else which is still reserved? The lawyers are no doubt already drafting their different arguments.

This is going to be a resource-intensive period for those working for Governments as administrators and lawyers, and in the courts working out how to apply (or not) the existing EU case law in any particular case, but a good time to be at the heart of constitutional change. The rest of us owe it to our clients too to keep a close eye on what is happening.